Baer v. Koch — 2 Misc. 334

Majority

p. 334

Baer v. Koch.

(New York Common Pleas

General Term,

February, 1893.)

Headnote

A verdict in plaintiffs favor, abundantly sustained by the evidence, should not be disturbed, because the jury might have found from the evidence in favor of defendant.

In the absence of an agreement as to the amount of his compensation or-of anything to show that his services were gratuitous, a real estate broker is entitled to recover upon quantum meruit, in this case, the usual commission paid for such services.

One of the plaintiffs and one of his witnesses, for the purpose of showing . what the plaintiffs did in regard to procuring property for defendant, were allowed to testify to conversations with persons, and not in the presence of defendants. Held, that the evidence was admissible in order to determine the quantum meruit to which plaintiffs were entitled.

A hypothetical question is properly excluded, which does not contain all the facts which have been proved at the time the question is put.

Appeal from a judgment rendered on the verdict of a jury.

Hen/ry G. K. Heath, for defendant (appellant).

Miller & Miller, for plaintiffs (respondents).

The defendant desiring to purchase some lots on One Hundred and Twenty-fifth street, near Third avenue, in the city of New York, for the purpose of erecting a store, requested the plaintiffs to enter upon the work of finding suitable property. After considerable effort on their part, they reported that no such property could be obtained in the desired locality, and then suggested^ to the defendant the expediency of purchasing further west on One Hundred and Twenty-fifth street, near Lenox avenue, and they were then authorized to look in that neighborhood. They procured several pieces, among which was the property in question, which they reported to the defendant with the terms on which it could be purchased. It appears from the evidence that the plaintiffs were the first persons to whom a price had been given and a sale of this particular piece of property authorized. And the main question litigated on the trial was whether, notwithstanding the plaintiffs submitted this offer to

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the defendant, they were the procuring cause of the purchase, or whether one Bennett, a real estate broker, through one Mr. Hume, was the procuring cause of the purchase, and this question was the main one submitted to the jury by the court, which found a verdict in favor of the plaintiffs. A motion for a new trial upon the minutes was made and denied.

It is no doubt true, as contended by appellant, that in this action the burden of proof was upon the plaintiffs to establish their case, which from the verdict they successfully did, and while the jury might well have found in favor of the defendant, yet the evidence abundantly sustains the conclusion to which they arrived, and we see no reason why it should be disturbed. But appellant contends that notwithstanding this verdict the plaintiffs should not recover, because they showed no express promise on the part of the defendant to pay the brokerage ; but an employment for services involves an obligation to pay compensation therefor. In the absence of an agreement respecting the amount of compensation or of anything to show that the services were merely gratuitous (and our experience with real estate brokers, as gathered from the1 many cases brought in the court, is that they never work gratuitously), the law implies a reasonable amount, a qucmtwn meruit; but a qua/ntum meruit in tins case is the usual commission paid for such services. Levy v. Coogan, 9 N. Y. Supp. 534 ; Crombie v. Waldo, 17 id. 373; Briggs v. Boyd, 56 N. Y. 289 ; Milliken v. West. Un. Tel. Co., 110 id. 412 ; Sibbald v. Bethlehem Iron Co., 83 id. 383 . A broker employed to purchase property, cannot properly act for the seller; his duties are to act in the interest of the purchaser, which is to procure the property at the lowest price possible; hence the reason for the rule which prohibits the broker from recovering compensation from both parties without their consent to his acting in the dual capacity. Dunlop v. Richards, 2 E. D. Smith, 181; Pierce v. Thomas, 4 id. 354 . By attempting to act for both sides he loses his claim for commissions and can enforce payment from neither one. Rice v. Wood, 113 Mass. 133 ; Farnsworth v.Heinmer 1

p. 336

Allen, 494 ; Walker v. Osgood, 98 Mass. 348 ; Bell v. McConnell, 37 Ohio St. 396 ; Carpenter v. Hogan, 40 id. 203. The broker for the purchaser not being allowed to act for the seller, cannot lawfully claim compensation from the seller, and when he is entitled to compensation for his services in such case, he must get it, if at all, from the purchaser who authorized him to act and for whom he did in fact act. Jarvis v. Schaefer, 105 N. Y. 293 ; Sussdorff v. Schmidt, 55 id. 319 . The testimony both as to amount of commissions and the custom to pay them was ample to sustain the verdict; and they were entitled to them because, as found by the jury, they procured the property, brought it to defendant’s notice, at the price and upon the terms which the defendant accepted. The latter might have closed the contract when the plaintiffs first brought the property to his attention, upon precisely the same terms that he ultimately paid. Mr. Bennett’s efforts in the matter of reducing terms wholly failed and his services were of no practical avail to the defendant. Having employed the plaintiffs to procure the property for him, and they having done so, the defendant could not complete the purchase himself and thus deprive the plaintiffs of their commissions. Paulsen v. Dallett, 2 Daly, 40 ; Martin v. Silliman, 53 N. Y. 615 ; Fraser v. Wyckoff, 63 id. 448; Lloyd v. Matthews, 51 id. 124; Sibbald v. Bethlehem Iron Co., 83 N. Y. 383 ; Morgan v. Mason, 4 E. D. Smith, 636; Chilton v. Butler, 1 id. 150.

But appellant contends that the complaint should have been dismissed because the evidence shows that plaintiffs knew the property was wanted for the purpose of erecting thereon a store for the business of defendant’s firm, and that his partner should have been joined in the action. But this question was left to the jury upon the evidence as to whether plaintiffs knew, that fact or not, and their attention was sharply drawn to it by the charge of the court and they have found upon the evidence in plaintiff’s favor upon that point, which is conclusive upon us in the absence of passion, prejudice, fraud or mistake, none of which appears in this case. It, therefore, only remains to examine the exceptions taken to

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the admission and exclusion of evidence and to the court’s charging as requested by the plaintiffs and refusal to charge as requested by the defendant.

One of the plaintiffs and one of his witnesses were allowed to testify to certain conversations with persons other than parties to the action and not in their presence. ' These questions were asked not for the purpose of sustaining the main issues in the case, but simply by way of showing what the plaintiffs did in regard to procuring property for the defendant, and where admissible in order to determine the quantum meruit to. which the plaintiffs were entitled. The objection as to conversations with Mr. Place was not well taken, as he was the agent for his wife and acted for her as such agent throughout the negotiations. Hor can it be justly said that the plaintiff Baer on the witness stand misrepresented Mr. Place’s ownership of the property; we think the testimony only went to show that he was acting as such agent. It was not error to exclude the question asked of Mr. Bennett, a witness called on behalf of the defendant, as to whether or not the Place property was upon the sale books of real estate brokers in Harlem. That question was entirely immaterial to the determination of the issues in controversy in this action ; nor did it tend to contradict the efforts made by the plaintiffs to procure property. The hypothetical question put to Mr. Libby, a witness called on behalf of the defendant, was properly excluded, as it did not contain all of the facts which had been proved at that time. In short, we find no error in the admission or exclusion of evidence in this case which could by any possibility have injured the defendant, which must appear before we would be justified in reversing a judgment on this account.

The appellant requested the court to charge “that in the absence of an express agreement on the sale of real property, the vendor pays the brokerage.” It is quite trae this is the general rule as far as the vendor is concerned when he employs a broker to sell for him, but the court properly qualified this request by saying, as it did, “ that is upon a sale of' it; this is

Concurrence

p. 338

a question of purchase; ” where, of course, the person desiring the purchase to be made and employing a broker to procure it, is bound to pay for the services. As before shown in the general discussion of the questions under consideration, it was quite proper for the court to charge that “ in the absence of any evidence' to the contrary, the law would imply a promise to pay for services rendered, and the defendant has no right to expect that those services were gratuitous, unless from some affirmative action on the part of Mr. Baer.” And the same is trae of the further charge made by the court to the effect “ if a party desiring to purchase property employs a broker to find property for him, he is under no obligation to pay unless he consents to take the property which the broker offers; but when he does take the property which the broker offers, his obligation is to pay, unless there is some arrangement that the compensation shall fall upon some other person.”

We, therefore, think the judgment should be affirmed, with costs.

Bischoff, J., concurs.

The action is by brokers to recover compensation for negotiating a purchase of property on behalf of the defendant.

By his answer and a motion to dismiss, the defendant interposed the objection of a defect of parties, in that the employment of the plaintiffs, if any, was not by the defendant individually, but by the firm of Koch & Reisenberg.

In point of fact the employment, if any, was by the defendant Koch, but, nevertheless, it may have been for and in behalf of the firm; in which event both members of the firm were necessary parties, provided Koch did not still engage himself only, or the plaintiffs were apprised that their employment was on account of the firm. For a member of a firm acting for the firm may so pledge his individual responsibility as to afford relief against himself alone ; or by failure to disclose the joint interest, may subject himself to a several action. Noe v. Christie, 51 N. Y. 270 ; Cookingham v. Lasher, 2

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Keyes, 454, where ruled, that “ when a copartner makes a contract in his own name, without disclosing the partnership, when sued, individually upon such contract, cannot turn the plaintiff over to a litigation with a stranger.” Upon the questions whether the defendant revealed the partnership at the time of the employment, and whether the plaintiffs were informed that they acted for the firm, the evidence was such as to authorize a verdict either way, and the issues having been submitted to the jury on- an unexceptional charge, we are not at liberty to gainsay their conclusion.

As to the employment of the plaintiffs, it appears that they were retained, in the first instance, to secure property in a specific locality; that suitable property in that locality was unattainable; that thereupon plaintiffs called defendant’s attention to the property in question and suggested its purchase, and that accordingly he did purchase it. Upon these facts it is clear beyond doubt that the defendant did, in legal effect, employ the plaintiffs to purchase the identical property; but if more be needed, it is supplied by evidence of authority to the plaintiffs to look for other property than that first contemplated.

The defendant resists the plaintiffs’ claim upon the further ground that they were not the procuring cause of the purchase. But they proffered the property to the defendant for a given price, and he eventually bought for that price. True, he declined the purchase at first; and true also that another broker had directed his attention to the property; but at last he accepted the terms tendered by the plaintiffs. Whether plaintiffs or the other broker were the procuring cause of the purchase, was fairly presented to the jury by the court, and their verdict is conclusive of the controversy. The fact that after the plaintiffs had presented an acceptable vendor, the defendant took charge of the negotiation and concluded it on the terms offered by the plaintiff, is ineffectual to defeat their claim for compensation. Lloyd v. Matthews, 51 K. Y. 124; Martin v. Silliman, 53 id, 615; Knapp v. Wallace, 41 id. 477; Sibbald v. Iron Co., 83 id. 378.

p. 340

It results, therefore, that as the defendant employed the plaintiffs to make the purchase, their demand was upon him; and they had no claim against the vendor for services he had not engaged them to render.

Nor is it of the slightest effect on the validity of the plaintiffs’ claim that the defendant never promised to pay them. Upon the rendition of services at the request and for the benefit of another, the law fastens upon him an obligation to pay their reasonable value; and adjudges the customary or market price to be that reasonable value.

Upon the issues discussed, the evidence was conflicting; but as they were submitted to the jury in a charge of the utmost fairness to the defendant, we repeat that it is not for us to disturb a verdict resting upon sufficient proof, and not, apparently, inconsistent with the interests of justice.

Judgment affirmed.

Cases cited

Briggs v. Boyd 56 N. Y. 289 N.Y. 1874-04-07 p. 335
Martin v. Silliman 53 N. Y. 615 N.Y. 1873-06-03 p. 336
Noe v. Christie 51 N. Y. 270 N.Y. Comm'n App. p. 338